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April 7, 2000

Mr. George Cato
Supervising Attorney
Office of General Counsel
Texas Department of Health
1100 West 49th Street
Austin, Texas 78756-3199

OR2000-1354

Dear Mr. Cato:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 134470.

The Texas Department of Health (the "department"), through the Texas State Board of Social Worker Examiners, received a request for "the entire complaint file" regarding a named formerly licensed social worker. You claim that the requested information is excepted from disclosure under section 552.130 of the Government Code and section 552.101 of the Government Code in conjunction with the informer's privilege and confidentiality provisions of the Occupations Code and the Health and Safety Code. We have considered the exceptions you claim and reviewed the submitted information.

Initially, we note that we agree with your designation of the documents you have labeled "medical records." Those documents are subject to section 159.002 of the Occupations Code, known as the Medical Practice Act ("MPA"), in conjunction with section 552.101 of the Government Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. The MPA provides in relevant part:

(b) A record of the identity, diagnosis, evaluation, or treatment of a patient by a physician that is created or maintained by a physician is confidential and privileged and may not be disclosed except as provided by this chapter.

(c) A person who receives information from a confidential communication or record as described by this chapter . . . may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained.

Occupations Code 159.002 (b),(c). The MPA requires that any subsequent release of medical records be consistent with the purposes for which a governmental body obtained the records. Open Records Decision No. 565 at 7 (1990). Thus, the MPA governs access to medical records. Open Records Decision No. 598 (1991). Sections 159.003 and 159.004 provide for exceptions to this confidentiality provision, but those exceptions do not appear to apply here. Thus, unless the department determines that an exception to confidentiality exists, the department must withhold the information marked "medical records" in its entirety. Because we resolve the status of these documents under the MPA, we will not address the other confidentiality provisions you raise as to these documents.

As to other information submitted, you seek to withhold identifying information pursuant to the informer's privilege under section 552.101. The informer's privilege has been recognized by Texas courts. See Aguilar v. State, 444 S.W.2d 935, 937 (Tex. Crim. App. 1969). It protects from disclosure the identities of persons who report activities over which the governmental body has criminal or quasi-criminal law-enforcement authority, provided that the subject of the information does not already know the informer's identity. Open Records Decision Nos. 515 at 3 (1988), 208 at 1-2 (1978). The informer's privilege protects the identities of individuals who report violations of statutes to the police or similar law-enforcement agencies, as well as those who report violations of statutes with civil or criminal penalties to "administrative officials having a duty of inspection or of law enforcement within their particular spheres." Open Records Decision No. 279 at 2 (1981) (citing Wigmore, Evidence, 2374, at 767 (McNaughton rev. ed. 1961)). The report must be of a violation of a criminal or civil statute. See Open Records Decision Nos. 582 at 2 (1990), 515 at 4-5 (1988).

However, the informer's privilege does not apply when the subject of the information already knows the informer's identity. Open Records Decision Nos. 515 at 3 (1998), 208 at 1-2 (1978). You inform us that you have already released all of the information not highlighted in the documents submitted to us. The information which you have released contains sufficient detail for this office to surmise that the subject of the complaint knows the identity of the informer. Withholding the information you have highlighted would not serve to protect the informer's identity from the subject of the complaint. Therefore, the department may not withhold any information pursuant to the informer's privilege under section 552.101.

The submitted information does contain confidential information that the department must withhold. Section 552.130 of the Government Code excepts information that relates to a motor vehicle title or registration issued by an agency of this state. You must withhold the driver's license number under section 552.130.

In addition, information may be withheld from the public under section 552.101 in conjunction with the common law right of privacy when (1) it is highly intimate and embarrassing such that its release would be highly objectionable to a person of ordinary sensibilities and (2) there is no legitimate public interest in its disclosure. Industrial Foundation v. Texas Industrial Accident Board, 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977); Open Records Decision No. 611 at 1 (1992). In Industrial Foundation, the Texas Supreme Court considered intimate and embarrassing information such as that relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. 540 S.W.2d at 683; see also, Open Records Decision Nos. 470 (concluding that fact that a person broke out in hives as a result of severe emotional distress is excepted by common law privacy), 455 (1987) (concluding that kinds of prescription drugs a person is taking are protected by common law privacy), 422 (1984) (concluding that details of self-inflicted injuries are presumed protected by common law privacy), 343 (1982) (concluding that information regarding drug overdoses, acute alcohol intoxication, obstetrical/gynecological illnesses, convulsions/seizures, or emotional/mental distress is protected by common law privacy). The common law right of privacy does not protect facts about a public employee's misconduct on the job or complaints made about his performance. See Open Records Decision Nos. 438 (1986), 219 (1978), 230 (1979). From our review of the submitted information, we conclude that the department must redact the complainant's identifying information. Identifying information includes the complainant's name, home address, home telephone number, and social security number.(1) In addition, the information in one e-mail document is both highly intimate or embarrassing and of no legitimate public interest, but it is apparent that the identity of one of the speakers has been released. Therefore, the department must withhold all highlighted information on that document. The remaining requested information must be released to the requestor. We have marked those portions of the information previously withheld which must now be released.

This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

Patricia Michels Anderson
Assistant Attorney General
Open Records Division

PMA/ljp

Ref: ID# 134470

Encl. Submitted documents

cc: Ms. Elaine Kidwell
4249 Castleman Avenue
St. Louis, Missouri 63110
(w/o enclosures)


 

Footnotes

1. Your brief commendably informs us that the social security number was obtained by the department pursuant to a provision of law enacted on or after October 1, 1990. As we conclude that the social security numbers in the file are confidential under common law privacy, we need not address the 1990 amendments to the federal Social Security Act, 42 U.S.C. section 405(c)(2)(C)(viii)(I).
 

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